delivered the majority opinion of the Court. Orth, J., concurs. Concurring opinion by Orth, J., at page 542 infra.
This appeal presents the question whether the State is empowered by Maryland Code (1968 Supp.), Article 5, Section 30 to appeal to the Circuit Court for Allegany *540County from acquittals entered by a trial magistrate in' that jurisdiction in two cases charging criminal violations of the Motor Vehicle Code, viz., as to appellee Campbell, driving under the influence of liquor in violation of Maryland Code, Article 66%, Section 206; and as to appellee Reeves, intentionally spinning the wheels of his motor vehicle in violation of Section 210 of that Article.1
In Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court of the United States overruled Palko v. Connecticut, 302 U. S. 319, and held that the guarantee against double jeopardy contained in the Fifth Amendment to the Federal Constitution 2 is applicable to and enforceable against the states through the Fourteenth Amendment. That constitutional guarantee protects against a second prosecution for the same criminal offense after acquittal by a tribunal competent to try the accused, and hence prohibits the government from securing a new trial by means of an appeal, even though the acquittal may appear to be erroneous. North Carolina v. Pearce, 395 U. S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969) ; Green v. United States, 355 U. S. 184; United States v. Ball, 163 U. S. 662; United States v. Sanges, 144 U. S. 310.
It would thus appear to be an exercise in academic futility for us to determine whether Section 30 of Article 5 authorizes the State to appeal from the magistrate’s judgments acquitting the appellees, since, if it does, it is plainly unconstitutional in light of Benton. See also Kepner v. United States, 195 U. S. 100. In so concluding, we are mindful of the principle that the rule of double jeopardy is generally applicable only when the first prose*541eution involves a trial before a court having jurisdiction and empowered to impose punishment by way of a fine, imprisonment, or otherwise as a deterrent to the commission of crime; in other words, the concept of double jeopardy clearly contemplates that action which bars a second prosecution must be one lawfully instituted in a court or tribunal which has the power to convict and punish the person prosecuted for his criminal conduct. Moquin v. State, 216 Md. 524; Smith v. State, 1 Md. App. 297. It is not contended by the State that the trial magistrate did not have jurisdiction to try the appellees. And it is clear that the offenses charged against appellees constituted violations of the criminal laws of this State, each being a misdemeanor punishable by imprisonment or fine or both. Under these circumstances, we hold that the federal constitutional protection against double jeopardy enunciated by Benton manifestly applies to a case involving, as here, an acquittal before a magistrate having jurisdiction to try the case and to impose punishment; and such acquittal operates as a bar to a subsequent prosecution for the same offense by a court of general or superior jurisdiction, i.e., the Circuit Court for Allegany County. See 22 C.J.S. Criminal Law, Sections 268, 270, and cases there cited, particularly State v. Ridgley, 424 P. 2d 632 (Wash.). Compare Bennett v. State, 229 Md. 208, 220, and State v. Lingner, 183 Md. 158, holding that under common law principles relating to double jeopardy where the offense is one over which an inferior tribunal has jurisdiction, an acquittal by that tribunal will bar a subsequent prosecution in a superior tribunal for the same offense. See also Crawford v. State, 174 Md. 175, holding that where the magistrate is without jurisdiction to try an offense, the accused has not been placed in jeopardy and may be subsequently charged for the same offense.
It has, of course, long been a well recognized part of the common law of this State that the rule against double jeopardy forbids a second trial for the same offense after *542acquittal. State v. Barger, 242 Md. 616, and cases cited at pages 618-619; Boone v. State, 3 Md. App. 11, 23-30. But as there was no Maryland constitutional provision protecting against double jeopardy, and so long as under Palko v. Connecticut, supra, the Fifth Amendment provision against double jeopardy was not applicable to the states, the right of the legislature, by statute, to change the common law rule of double jeopardy and authorize the State to appeal, even from an acquittal, was equally well recognized. Ford v. State, 237 Md. 266; Bennett v. State, supra; State v. Adams, 196 Md. 341; Johnson v. State, 191 Md. 447; Robb v. State, 190 Md. 641; Jenkins v. State, 3 Md. App. 243. That Benton changes the Maryland law in this respect and prohibits the Legislature of this State, as a matter of federal constitutional law, from authorizing the State to appeal from a judgment of acquittal is clear and definite, and to the extent that Section 30 of Article 5 would authorize the State to appeal, it is unconstitutional as violative of the Fourteenth Amendment to the Constitution of the United States.3
Appeal dismissed.
. We granted the State’s petition for a writ of certiorari to consider the question, the Circuit Court for Allegany County having1 dismissed the State’s appeal on the ground that Article 5, Section 30 did not, as contended by the State, authorize an appeal to the Circuit Court from a judgment of acquittal by a trial magistrate.
. “(N)or shall any person be subject for the same offense to be twice put in jeopardy of life and limb * *
. Nothing in Benton interdicts the general right of the State to appeal under Maryland Code, Article 5, Section 14, “from a final order or judgment granting a motion to dismiss, or quashing or dismissing any indictment, information, presentment or inquisition in a criminal action * * In such a case, the accused has not been placed in jeopardy. And while the State is presently without statutory authority to appeal from the granting of a motion to suppress evidence, see State v. Mather, 7 Md. App. 549, we think it clear that the double jeopardy provisions of the Federal Constitution would not proscribe such an appeal. See Kepner v. United States, supra.